N.C. Jacob and Others v. T.P. Kishore and N.M. Alley

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA, 1943** **RSA NO. 294 OF 2009** **AGAINST THE JUDGMENT AND DECREE IN AS 110/2007 OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM** **AGAINST THE JUDGMENT AND DECREE IN OS 1208/2003 OF I ADDITIONAL** ## **MUNSIFF COURT, ERNAKULAM** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** 1 N.C.JACOB, *(DIED) S/O CHACKO, CHACKALAKKAL HOUSE, 31/1970 A, FELIX ROAD, THAMMANAM, ERNAKULAM. (LEGAL HEIRS ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4) 2 *ALEYAMMA JACOB, W/O N.C.JACOB, CHAKKALAKKAL HOUSE, 31/1970 A, FELIX ROAD, THAMMANAM, ERNAKULAM. 3 JAIMON JACOB, S/O N.C.JACOB, CHAKKALAKKAL HOUSE, 31/1970 A, FELIX ROAD, THAMMANAM, ERNAKULAM. 4 TESSYMOL JACOB, D/O N.C.JACOB, CHAKKALAKKAL HOUSE, 31/1970 A, FELIX ROAD, THAMMANAM, ERNAKULAM. (DEATH OF THE SOLE APPELLANT IS RECORDED AND HIS LEGAL REPRESENTATIVES ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER ORDER DATED 05.03.2018 IN I.A 538/2018) BY ADVS. SRI.PHILIP T.VARGHESE SMT.SUBHA ABRAHAM SRI.THOMAS T.VARGHESE ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** 1 T.P.KISHORE, THURUTHIL HOUSE, FELIX ROAD, THAMMANAM, ERNAKULAM - 682 032. 2 N.M.ALLEY D/O. PADMANABHAN THURUTHIL HOUSE, FELIX ROAD, THAMMANAM, ERNAKULAM - 682 032. BY ADV SRI.K.R.VINOD THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A No.294 of 2009 2 'CR' K.BABU, J . -------------------------------------- ## R.S.A No.294 of 2009 --------------------------------------Dated this the 11[th] day of November, 2021 ## JUDGMENT This Regular Second Appeal emanates from the decree and judgment dated 13.07.2006 passed by the Additional Munsiff, Ernakulam in O.S.No.1208/2003, which was partly set aside by the Additional District Court, Ernakulam in A.S.No.110/2007. The defendant is in appeal before this Court under Sec.100 of the Code of Civil Procedure, 1908. 2. Material facts in a nutshell are as follows: 2.1. The plaintiffs purchased plaint 'A' schedule property, having an extent of 2.370 cents of property with 10 links wide pathway to access the main road on the north, in Survey No.288/2 of Poonithura Village as per sale deed bearing No.4075/1990. There was no compound wall on its eastern side at the time of purchase of the property. The plaintiffs constructed a compound wall on the eastern side and put up a gate having 5 feet width on the northeastern corner. The defendant is residing on the eastern side of the R.S.A No.294 of 2009 3 plaint 'A' schedule property, which he purchased in 1997 as per sale deed No.3246/1997. He constructed a building therein. In 2002, the defendant extended the compound wall upwards. In 2003, the defendant encroached upon the pathway provided to the plaintiffs as per Ext.A1 sale deed and constructed concrete steps. The defendant has no right to trespass upon any portion of the pathway. The defendant trespassed upon 25 sq.links of property on the 'B' schedule. 3. The defendant resisted the claim of the plaintiffs. At the time of purchase of the property itself, there was a building on it. He made no additional construction after the purchase of the property. In 1997, itself the iron gate was fixed on the northwestern corner of plaint 'A' schedule property. The defendant has not made any unauthorised construction as pleaded. He has not trespassed upon the pathway. The 10 links wide way described in the plaint is a common pathway. The plaintiffs have no title or preferential claim over the pathway. 4. The evidence, in this case, consists of the oral evidence of PWs 1 and 2 and DWs 1 and 2, and Ext.A1 marked on the side of the R.S.A No.294 of 2009 4 plaintiffs and Ext.B1 marked on the side of the defendant. Exhibit C1 to C4 were also marked as Court Exhibits. 5. The Trial Court held that the plaintiffs failed to plead the nature of right over the pathway and that the right he acquired over the pathway was extinguished under Sec.38 of the Easements Act due to non-user. Based on these findings, the Trial Court dismissed the suit. 6. The First Appellate Court held that the finding of the Trial Court that the right of the plaintiffs extinguished as per Sec.38 of the Easements Act is against the statutory provision. The Appellate Court further found that the plaintiffs had obtained 10 links wide pathway with an entry of 14 links to 'A' schedule property. The First Appellate Court further found that the defendant had encroached upon 25 sq.links on the pathway, which is specifically described in the plaint as 'B' schedule. 7. After hearing both sides, this Court reformulated the substantial questions of law as follows: - (I) Is it not necessary for the plaintiffs to plead in the plaint with regard to the nature of the right claimed by them over plaint B schedule property, especially when the right claimed appears to be the right of easement? R.S.A No.294 of 2009 5 - (ii) Has not the lower appellate Court erred in holding that the right acquired by the plaintiff has not extinguished due to non-user ? 8. Heard Sri.Philip.T.Varghese, the learned counsel appearing for the appellants and Sri.K.R.Vinod, the learned counsel appearing for the respondents/plaintiffs. 9. The dispute centres around the question whether the right of the plaintiffs over the pathway extinguished due to non-user of the same. 10. The plaintiffs are, admittedly, the owners in possession of plaint 'A' schedule property. The defendant is the owner of the property lying on the east of 'A' schedule property. The pathway described in the plaint is admittedly a common way that runs in the north-south direction. The pathway enters the plaint 'A' schedule property on its north-eastern corner. 11. The Trial Court as well as the First Appellate Court concurrently found that the pathway has a width of 10 links towards the public road with a width of 14 links at the entrance portion of 'A' schedule property. 12. The First Appellate Court further found that the defendant encroached upon the pathway over an extent of 25 sq.links ('B' R.S.A No.294 of 2009 6 schedule in the plaint). 13. The learned counsel for the appellants/defendant contended that the plaintiffs failed to plead the nature of right claimed over the pathway. Admittedly, the pathway in question is a common way provided by the vendor of the properties to the plaintiff and defendant. There is a specific pleading in the plaint that the pathway has been provided as per sale deed No.4075/1990 to access the northern road. So it is evident that the plaintiffs acquired the right over the pathway as a grant, which is not under challenge. The right over the way including 'B' schedule is resisted by the defendant on the ground that the right acquired by the plaintiffs got extinguished due to non-user. 14. Going by the pleadings and evidence, indisputably, the 'B' schedule pathway was set apart as a common way by the predecessors in interest of the plaintiffs and defendant to be used as a way. It is further evident that the parties acquired right over 'B' schedule pathway as a grant. If a person acquires a grant by express or by necessary implication, it will usually be on payment and there is no reason why such an easement which is paid for R.S.A No.294 of 2009 7 should be extinguished for the reason that the acquirer did not use it for a time period. In Velayudhan v. Padmanabhan [1988 (2) KLT 417 para.4], this Court had occasion to consider such a question. This Court held thus: “4. The question whether an easement is one acquired by grant or as of necessity is not to be decided on the absolute necessity of it. It is the nature of the acquisition that counts. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties and it may have its own consideration in some form or other. In the matter of grant the parties are governed by the terms of the grant and not anything else. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under S.13 of the Easements Act even though it may also be an absolute necessity for the person in whose favour the grant is made. On principle it is clear that if a person acquires a grant expressly or by necessary implication, it will usually be on payment and there is no reason why such an easement which is paid for should be extinguished for the reason that the acquirer came by another access. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant that it was to continue only until such time as the necessity was absolute and there is no evidence to support such an agreement it must be held that the grant was not limited till the necessity for it existed. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of S.13 and it is not extinguished by the statutory provision under S.41 of the Easements Act which is applicable only to easements of necessity arising under S.13 (See Hirajee and another v. Suraj Bali AIR. 1929 Oudh 351- and JR. Sivanandan and others v. Rajammal and another-1915 (1) MLJ. 251).” 15. The Apex Court in Hero Vinoth (Minor) v. Seshammal [(2006) 5 SCC 545 para.28], on the question whether an easement R.S.A No.294 of 2009 8 ## will extinguish due to non-user held thus: “28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute; in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13.” 16. As the plaintiffs acquired right over the pathway by an express grant, the said right will stand extinguished only by releasing the same by the plaintiffs in favour of the granter. Frederick Peacock in the Law Relating to Easements in British India (Thacker, Spink and Company 1904, page No.456) comments thus: “Easements may be created by 'express grant', so easements may be extinguished by 'express release'.” R.S.A No.294 of 2009 9 17. The granter is the vendor of the plaint 'A' schedule property in the present case. The plaintiffs may release the grant by an instrument under seal. At any rate, the defendant has no right to raise the defence of extinction of right over the pathway as he is not a granter, and he has only a common right to use the way as the one enjoyed by the plaintiffs. 18. This Court finds that the plaintiffs have subsisting right over the entire pathway, including 'B' schedule. The defendant has no exclusive right over the pathway, including the encroached portion. 19. The First Appellate Court found that the defendant encroached upon the pathway over an extent of 25 sq.feet described as 'B' schedule by constructing steps. The First Appellate Court directed the defendant to demolish the encroachment over 'B' schedule as shown in Ext.C4 plan. There is an obligation on the defendant not to intervene with the right of enjoyment of the pathway by the plaintiffs as provided in Secs.38 and 39 of the Specific Reliefs Act. So, the plaintiffs have satisfied the requirement for getting mandatory injunction as granted by the R.S.A No.294 of 2009 10 First Appellate Court. 20. The First Appellate Court has re-appreciated the pleadings and evidence in accordance with law. The Court has drawn necessary inferences and presumptions that would apply to the facts and circumstances of this case. The findings of the First Appellate Court require no interference. The Regular Second Appeal stands dismissed. Sd/K.BABU, JUDGE KAS